Strickler Engineering Corp. v. Seminar, Inc.

• Decision Date: 08 May 1956
• Docket Number: No. 163,163
• Citation: 210 Md. 93,122 A.2d 563
• Parties: STRICKLER ENGINEERING CORP., etc. et al. v. SEMINAR, Incorporated.
• Court: Maryland Court of Appeals

Page 93

210 Md. 93

122 A.2d 563

STRICKLER ENGINEERING CORP., etc. et al. v. SEMINAR, Incorporated.

No. 163.

Court of Appeals of Maryland.

May 8, 1956.

Robert S. Bourbon, Silver Spring (Robert C. Heeney, Silver Spring, on the brief), for appellants.

Warren Browning, Bethesda (Leonard S. Melrod and Joseph V. Gartlan, Jr., Washington, D. C., on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment entered in favor of Seminar, Incorporated, a Delaware Corporation, (Seminar), appellee, and against Strickler Engineering Corporation, a body corporate, and Dean G. Strickler and Ruth M. Strickler, all herein referred to as Stricklers, appellants, on a motion for Summary Judgment.

On December 15, 1953, Stricklers, as the first party, and Seminar, as the second party, entered into an agreement which provided, for the purposes of this case, that Stricklers were in the business of buying diesel engines and other heavy machinery and equipment. They had the opportunity to buy two diesel engines and were in need of capital for that purpose. They desired to enter into a joint venture for the reconditioning and sale of said equipment. Seminar was desirous of entering into said joint venture with Stricklers upon certain terms and conditions. Stricklers agreed to purchase two diesel engines and two alternators for the total sum of $8,800 in cash. Seminar agreed to advance to Stricklers said sum of $8,800. Stricklers were to dismantle and bring to their plant in Baltimore all this equipment for the reconditioning for sale. The parties agreed to own said engines as a joint venture and to resell said engines and split the profits, Stricklers to receive sixty percent and Seminar forty percent. It was agreed that Stricklers had an order for one of the diesel engines from a third party for a sale price of $13,500 less a commission of $1,350. With reference to the remaining diesel engine, Stricklers agreed to recondition it and offer it for sale, and upon the consummation of such sale, to render unto Seminar an itemized statement and a check made payable to Seminar and Stricklers jointly evidencing the share of profits to which the parties were entitled. It was also agreed that Stricklers should recondition 'and offer the said remaining diesel engine for sale and agree that in the event that such engine not be sold by December 15, 1954, that they will at such time, at the option of Second Party, remit unto the said Second Party the sum of $4,400.00, which represents the purchase price of said diesel engine. In the event that Second Party shall desire to continue to allow First Parties to offer said engine for sale and such period extends beyond December 15, 1954, then and in such event First Parties shall hold for the benefit of both parties to this agreement the aforementioned diesel engine and shall continue to offer said engine for sale for the joint profit of the parties to this agreement; provided, however, that at any time after December 15, 1954, upon a thirty day notice to First Parties, Second Party shall become entitled to demand the return of the original cost of said engine; namely, the sum of $4,400.00 and upon such demand having been received by said First Parties, First Parties do hereby agree at the expiration of thirty days from the date notice is received by them by registered mail, that they will remit to Second Party the sum of $4,400.00 and upon said payment Second Party shall have no further interest in the diesel engine hereinbefore described. First Parties shall execute within the next few days a note for $4,400.00 to secure repayment of $4,400.00 in the event that the second diesel engine is not sold within one year. Said note shall then become due and payable at the expiration of said one year period.

This note shall be executed by Dean G. Strickler and Ruth M. Strickler in their individual as well as corporate capacities.' Title to the second diesel engine would remain in Seminar until sold.

The following note was signed:

'4,400.00

Baltimore, Md.

December 18, 1953

'One (1) year ..... after date ..... we ..... promise to pay to

'Seminar, Inc.

'..... Forty-four hundred Dollars

'Value received

'No.

Due

'Strickler Engineering Corporation

'By /s/ Dean G. Strickler

'Dean G. Strickler, Pres.

'(Endorsement on back of note)

'/s/ D. G. Strickler

'/s/ Ruth M. Strickler'

On July 13, 1955, Seminar filed a suit against Stricklers for $4,400, with interest from December 18, 1954, and costs. The declaration contained the common counts and a special count setting forth the provisions of said note. Filed with the declaration was the motion for Summary Judgment.

The defendants, appellants, answered by filing the general issue plea, an affidavit in opposition to the motion for Summary Judgment, and the joint venture agreement. In that affidavit they alleged that the note for $4,400 was merely a receipt for money advanced by the plaintiff to the defendants under and by virtue of the joint venture agreement. Defendants further alleged 'said agreement concerns a joint enterprise to sell certain diesel equipment to third parties with plaintiff and defendant sharing profits of said sale; that said venture is still in being, it never having been terminated in accordance with its terms; that a copy of said venture is attached hereto as an exhibit; that said agreement was prepared by an attorney hired by your affiants and they relied on his representations as to the nature of said agreement; that said attorney was in fact attorney for the plaintiff and a member of said group of investors incorporated in the plaintiff's name; that a number of the terms of said agreement were not explained to defendants and it was never contemplated that the plaintiff herein could sue on the note prior to a sale of the equipment to be purchased with money advanced by the plaintiff and for which the note was given as a receipt therefor; that on the contrary, subsequent to the execution of the 'Joint Venture Agreement' it was contemplated and expressed by the agents, servants and employees of the plaintiff that if the sale of the diesel equipment did not take place within one year from date, that in that event the defendants would pay five (5%) per centum per annum interest on said money advanced; that one of the pieces of equipment has been sold and there was a dispersal of profits in accordance with the terms of said agreement; that the remaining piece of equipment has not been sold, but is saleable and should be sold before a trial of this case on its merits and said suit herein therefore will be made moot and unnecessary. That there are questions of law and fact to be decided on a trial on its merits and defendants respectfully ask this Honorable Court to dismiss said motion for summary judgment and permit a trial of the within cause.'

The plaintiff then filed a further affidavit in support of its motion for Summary Judgment accompanied by a letter from plaintiff to defendants dated January 6, 1955, which gave defendants thirty days notice for the return of the $4,400 as required by the terms of the joint venture agreement. At the hearing on the motion for Summary Judgment the aforesaid note was offered in evidence. The authenticity, competency, or materiality of none of the aforementioned documents was disputed.

The trial judge granted the Summary Judgment claimed by the plaintiff, appellee, and from that judgment defendants, appellants, appeal here.

The Summary Judgment Rules of the Court of Appeals

were adopted on November 12, 1947, and became effective on January 1, 1948. Summary Judgment Rule 4(a) requires that: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.' If the affidavit filed or other evidence show a genuine conflict, the court should deny the motion. The court does not attempt to decide any issue of fact or of credibility, but only whether such issues exist. This procedure is not a substitute for a trial but merely a hearing to decide whether a trial is necessary. The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties. The rule is one whereby the court may summarily determine whether or not there is a bona fide issue between the parties. A determination by the court that such an issue is presented requires the denial of the motion for Summary Judgment and a trial of the issues by the jury or court at the election of either party. Frush v. Brooks, 204 Md. 315, 104 A.2d 624; Nardo v. Favazza, 206 Md. 122, 110 A.2d 676. The question therefore before us is whether the judgment should have been granted as a matter of law.

The appellants contend first that the note is not what it proports to be, but is in effect a...